Petitioner
Roy A. Harding, by Reginald Henry, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Lowe's Home Centers, Inc., by James Heslep,
its attorney, filed a timely response.

The
issue presented in the instant appeal is the amount of
permanent impairment arising from Mr. Harding's
compensable October 13, 2013, injury. On September 4, 2014,
the claims administrator granted Mr. Harding a 4% permanent
partial disability award. The Office of Judges affirmed the
claims administrator's decision in its Order dated April
6, 2016. This appeal arises from the Board of Review's
Final Order dated September 28, 2016, in which the Board
affirmed the Order of the Workers' Compensation Office of
Judges. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Procedure.

Mr.
Harding injured his left shoulder on October 13, 2013, while
maneuvering a large box containing a heavy piece of inventory
during the course of his employment as a plumbing specialist
with Lowe's Home Centers, Inc. On October 25, 2013, his
claim for workers' compensation benefits was held
compensable for a left shoulder sprain/strain. A left
shoulder MRI performed on November 21, 2013, revealed a near
full-thickness tear of the rotator cuff tendon, joint
effusion, mild impingement, and degenerative changes. A left
rotator cuff tear was added as a compensable component of the
claim on February 4, 2014. Mr. Harding's shoulder was
surgically repaired by Steven Vess, D.O., who performed an
open acromioplasty and diagnosed Mr. Harding with severe
impingement of the left shoulder, adhesive capsulitis, and a
rotator cuff tear.

Jerry
Scott, M.D., performed an independent medical evaluation on
July 15, 2014, and authored a report memorializing his
findings on the same date. Dr. Scott determined that Mr.
Harding sustained 8% whole person impairment as a result of
range of motion abnormalities in the left shoulder. However,
he apportioned 4% of the whole person impairment to
pre-existing abnormalities and degenerative conditions
revealed via diagnostic imaging. The claims administrator
granted Mr. Harding a 4% permanent partial disability award
based upon Dr. Scott's independent medical evaluation.

Robert
Walker, M.D., performed an independent medical evaluation on
June 5, 2015, and authored a report memorializing his
findings on September 1, 2015. Dr. Walker determined that Mr.
Harding sustained 14% whole person impairment as a result of
the open acromioplasty performed by Dr. Vess and range of
motion abnormalities in the left shoulder. Dr. Walker
attributed the entirety of Mr. Harding's permanent
impairment to the compensable injury.

The
Office of Judges affirmed the claims administrator's
decision granting a 4% permanent partial disability award in
its Order dated April 6, 2016. The Board of Review affirmed
the reasoning and conclusions of the Office of Judges. On
appeal, Mr. Harding asserts, per the opinion of Dr. Walker,
that he is entitled to a 14% permanent partial disability
award as a result of the compensable October 13, 2013,
injury.

At the
outset, the Office of Judges looked to West Virginia Code
§ 23-4-9b (2003), which requires that pre-existing
impairment be excluded when determining a claimant's
whole person impairment resulting from a compensable injury.
The Office of Judges then noted that Dr. Scott apportioned
for pre-existing conditions, whereas Dr. Walker did not. The
Office of Judges also found that the medical evidence of
record establishes that Mr. Harding suffered from
pre-existing left shoulder conditions. Specifically, the
Office of Judges found that in 2011 and 2012, Wesley Olson,
M.D., diagnosed Mr. Harding with arthritis of the left
shoulder and probable impingement of the left shoulder. The
Office of Judges also noted that the left shoulder MRI
performed shortly after the injury revealed the presence of
degenerative changes. The Office of Judges then determined
that because the evidentiary record clearly demonstrates that
Mr. Harding suffered from pre-existing conditions in the left
shoulder, the provisions of West Virginia Code § 23-4-9b
apply and impairment attributable to the pre-existing
diagnoses should be excluded when calculating the amount of
Mr. Harding's whole person impairment arising from the
October 13, 2013, injury. Therefore, the Office of Judges
concluded that Dr. Scott's findings are more reliable
because he properly apportioned for Mr. Harding's known
pre-existing diagnoses, whereas Dr. Walker did not. We agree
with the reasoning and conclusions of the Office of Judges,
as affirmed by the Board of Review.

For the
foregoing reasons, we find that the decision of the Board of
Review is not in clear violation of any constitutional or
statutory provision, nor is it clearly the result of
erroneous conclusions of law, nor is it based upon a material
misstatement or mischaracterization of the evidentiary
record. Therefore, the decision of the Board of Review is
affirmed.

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